MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           06 SEPTEMBER 2001
	DOCKET NUMBER:   AR2001059236

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be medically retired or discharged.  The applicant states, in effect, that he was told that he was being medically discharged from the Army as a result of being hurt “in the line of duty.”  He notes that a DD Form 689 (Sick Slip, Individual) “plainly states injured in the line of duty” but he does not submit that form, nor any other evidence, in support of his request.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the U.S. Army Reserve on 28 February 1984 and was ordered to active duty for the purpose of undergoing basic training on 6 April 1984.

On 18 April 1984 a physician determined the applicant’s history of a left inguinal hernia was medically disqualifying.  The applicant indicated that he had noticed increased swelling and pain upon entry on active duty.  The evaluating physician recommended the applicant be separated from the military.  A medical evaluation board concurred with the findings and recommendation of the evaluating physician.  As a result of the findings and recommendation the applicant requested separation from the military.  

On 23 April 1984, just prior to finalization of the applicant’s medical proceedings, he struck his head on a metal object and sustained a cut on the top of his head. His wound was cleaned and he returned to duty.  The head injury had no impact on the applicant’s discharge proceedings.

On 8 May 1984 the findings and recommendation of the medical board and the applicant’s request were approved and on 10 May 1984 he was discharged for failing to meet procurement medical fitness standards.  

Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnoses or should have been diagnosed.  Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.  
The applicant’s discharge for failing to meet procurement medical fitness standards was appropriate and the applicant has not provided any evidence which support his contention that he should have been medically retired or discharged as a result of a service incurred injury or medical condition.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 May 1984, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 10 May 1987.

The application is dated 13 April 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__LLS___  __MHM _  __JTM __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001059236	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010906	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.